Reiss on Branch, long shot to win grievance...

[dryheat44]

It goes both ways. He is in violation of the contract but the CBA also creates an incentive for players to violate the contract since it allows them to opt out of playing in their last year before free agency. In other words, Branch has a pretty good incentive for holding out. The CBA gives it to him.
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WHAT??? The CBA absolutely does not allow a player to hold out. In fact, the version I've seen expressly mentions this. All the CBA provides is the maximum penalty. Owners can't fine players 100,000 a day due to the CBA. It's like saying NFL rules allow roughing the quarterback, because the league has a penalty of 15 yards for doing it.

 

[upstater1]

Next time you're on the highway, look for those signs that say "Littering maximum fine $1500". Just because the penalty is determined doesn't make littering legal.

Yeah, but, there's also no incentive to litter. With the CBA there is. It's kind of like Six Flags. If you pay the extra fine for cutting the line (heh, heh) you get to go on all the rides without waiting.

If there was an incentive for littering that outweighed the fine, I'm sure our highways would be overflowing wth refuge.

 

[Sundayjack]

Yeah, Branch is violating his contract, but he's sticking to the rules of the CBA in doing it, and the CBA actually takes greater precedence than Branch's actual contract. Like it or not, players hold out...because they can. They are allowed to. The owners agreed to let them hold out. Why? Because the owners care more about $$$ than they do the fans.

If I shake my head any harder, my fillings will fall out. These are rules and sanctions, just like anywhere else in society. Accepting that I will get life in prison for committing murder doesn't equate to my "playing by the rules." A 10-week provision in the CBA isn't a tacit allowance of holdouts. It's good bargaining by the Union, recognizing that, in a true union, ALL players would strike over a salary issue; With this "player's association," an individual holdout is the nearest equivalent to a strike.

 

[upstater1]

WHAT??? The CBA absolutely does not allow a player to hold out. In fact, the version I've seen expressly mentions this. All the CBA provides is the maximum penalty. Owners can't fine players 100,000 a day due to the CBA. It's like saying NFL rules allow roughing the quarterback, because the league has a penalty of 15 yards for doing it.

Sure it does. The CBA allows a player to hold out by allowing him to fulfill a year of his contract even if he misses most of the season. That's a huge incentive for a player that wants to hold out, especially if that player's current contract is a fraction (say, 1/7th) of the contract he expects to get after his holdout. That is a huge incentive and it's allowed under the CBA. As a matter of fact, that one clause in the CBA is the ENTIRE reason the Patriots are in this mess with Branch in the first place. It can't be denied.

 

[upstater1]

If I shake my head any harder, my fillings will fall out. These are rules and sanctions, just like anywhere else in society. Accepting that I will get life in prison for committing murder doesn't equate to my "playing by the rules."

Ignoring the moral question, if the fine for murdering someone was negligible, and at the end of a very short sentence there was a pot of gold waiting for you as a reward for committing the act, you'd find quite a few takers. So, I guess I don't buy the metaphor ultimately. In fact, I WISH there was something equivalent to a LIFE SENTENCE in the Branch case, but there isn't. A life sentence is usually a deterrent for committing murder. And right now it's obvious that Branch has not been deterred enough. This is what I was originally arguing. I would like to see the NFL institute the equivalent of a life sentence (i.e. force players to end holdouts by the regular season or else they have to fulfill the last year on their contracts in the next season).

A 10-week provision in the CBA isn't a tacit allowance of holdouts.

I think players and agents view it exactly as a tacit allowance of holdouts. Losing $1 million as opposed to risking the loss of $30 million is enough of an incentive for Branch to interpret the 10-week provision as a good option, and since that option is there, obviously the players and agents consider it a weapon in a negotiation. The owners allow it by agreeing to it.

 

[DarrylS]

While I agree, I'd say it's a bit more than that since the NFLPA big guns took this on AND they risk destroying the informal process by which a team allows a player under contract to shop himself around.

I really don't understand why the NFLPA is taking this risk. It makes no sense to me.

This argument is not indigenous to the NFLPA, but IMO, the bane of unions, they have to represent their players whether they want to or not, Branch may been been counseled not to file a grievance, but his idiot attorney may have told him to take a chance. When I was heavily involved in Union work, we always spent the most time with the people who were always in trouble, you cannot tell them to walk...we knew we would often loose, but we had to represent them. What Branch is doing is tatamount to a frivelous law suit... I have yet to hear or read anything about what part of the NFL CBA the Pats violated..

 

[patsox23]

If I shake my head any harder, my fillings will fall out. These are rules and sanctions, just like anywhere else in society. Accepting that I will get life in prison for committing murder doesn't equate to my "playing by the rules."

LOLOLOLOL! Exactly. Thank you. And it brought "the funny." Good work.

 

[Isaac]

Branch is in breach of contract, pure and simple. It is not allowed by the CBA. The CBA institutes the maximum penalty.

Next time you're on the highway, look for those signs that say "Littering maximum fine $1500". Just because the penalty is determined doesn't make littering legal.

Well, I could very well be wrong on this, but it seems that both sides are performing as they are allowed to under the CBA: Branch holding out and the team fining the player. If this was truly a breach of contract then the CBA shouldn't allow the player to still get any credit by returning in week 10---i.e. it should read that not reporting is considered a breach of contract and the player must return his signing bonus, doesn't get credit for a year, etcetera.

A counter-example is the Kellen Winslow accident---that was truly a breaching of his contract and the team was allowed to demand a refund of the signing bonus. Holding out doesn't seem to be treated the same way and therefore, without knowing the legalese, it doesn't seem to be treated as a true breach of contract.

Another issue is that, as I understand it, the players negotiated for the right to hold out (with certain limited penalties). If one side of a CBA negotiates for a certain right, exercising that right can't be considered outside of that CBA.

None of this should matter for the grievance though...

 

[Sundayjack]

I think players and agents view it exactly as a tacit allowance of holdouts. Losing $1 million as opposed to risking the loss of $30 million is enough of an incentive for Branch to interpret the 10-week provision as a good option, and since that option is there, obviously the players and agents consider it a weapon in a negotiation. The owners allow it by agreeing to it.

As I said, akin to a strike in a true union. This is nothing more that a recognition that union's withhold work as bargaining leverage. That's generally their only leverage. Setting limits to how long that can go on without nullifying an entire contract year doesn't make it any more sanctioned. That would be tantamount to arbitrarily making one contract provision (from the CBA) superior to the other contract provision (from the Player Contract).

A matter of perspective, perhaps. I don't think we'll agree on this.

 

[upstater1]

As I said, akin to a strike in a true union. This is nothing more that a recognition that union's withhold work as bargaining leverage. That's generally their only leverage. Setting limits to how long that can go on without nullifying an entire contract year doesn't make it any more sanctioned. That would be tantamount to arbitrarily making one contract provision (from the CBA) superior to the other contract provision (from the Player Contract).

A matter of perspective, perhaps. I don't think we'll agree on this.

well, I think the only reason we're not seeing eye to eye is that you're a lawyer and you're looking at it legally. Of course breaking the rules is...well, breaking the rules, and Branch is doing that.

On the street, however, the players are not looking at these as rules, at least not the same thing as the rules that guide us morally and culturally as in the act of taking someone's life. Football is a game. Getting a contract is a game. The money is absurd.

Ultimately, the players do see it as an incentive, and one easy way to prove this is to look at the new CBA which raised the fine for each day of camp missed. Obviously, everyone felt the rule lacked teeth, and that the 10 game provision was proving to be too much of an incentive, so they tacked on another $9k. The problem is, for star players like Branch, nothing has really changed with that additional $9k a day that's been tacked on.

Legally, you're right of course. He has broken his contract. But in this league, that's common practice, and few players really take their contract seriously. I was just talking about the real world ramifications of the CBA.

 

[MoLewisrocks]

Ignoring the moral question, if the fine for murdering someone was negligible, and at the end of a very short sentence there was a pot of gold waiting for you as a reward for committing the act, you'd find quite a few takers. So, I guess I don't buy the metaphor ultimately. In fact, I WISH there was something equivalent to a LIFE SENTENCE in the Branch case, but there isn't. A life sentence is usually a deterrent for committing murder. And right now it's obvious that Branch has not been deterred enough. This is what I was originally arguing. I would like to see the NFL institute the equivalent of a life sentence (i.e. force players to end holdouts by the regular season or else they have to fulfill the last year on their contracts in the next season).

To further the analogy for you (because in the NFL it's all about risk reward) in order to collect that pot of gold you would have to be willing to risk being bent over several times a day by your fellow inmates and willing to assume none of them was in such a foul mood he decided to use the shiv he's been working on in shop to slit your throat before you finish your short sentance. Deion not only risks being injured if he returns to the field, he risks he absent-mindedly trips over a toy while visiting one of his three children and their two mothers or some nitwit he's playing semi-pro basketball with as part of a celebrity promotional tour doesn't accidentally plant on his foot in mid stride or he doesn't befall some other bizarre non-football related injury between now and actually achieving FA.



I think players and agents view it exactly as a tacit allowance of holdouts. Losing $1 million as opposed to risking the loss of $30 million is enough of an incentive for Branch to interpret the 10-week provision as a good option, and since that option is there, obviously the players and agents consider it a weapon in a negotiation. The owners allow it by agreeing to it.

I think if this were true you would see more than a pair of full blown holdouts a year in a league that employs over 1300 players a season. In Branch's case it really makes no sense since he faces a franchise tag in 2007 that he must either play under or lose an entire year's salary and assume another year of full risk of off field injury to avoid playing under in order to reach unfettered UFA status. Few players will refuse to play under the tag when first applied because the guaranteed salary is so enticing. And if he does play under it he faces the same decision a year later...which is when guys who have banked the $$$ from the first tag usually are in a position to hold out and are tagged and traded like John Abraham was by the JETS this off season as a result.

I think the easy part of this little ploy is over now - Deion's agent used his holdout status to elevate his profile above that of the mainly nameless faceless Patriot player. Now comes the hard part for the Branch camp. Sitting on the couch for the next 9 Sundays and watching other WR's get all the media love and ducking calls from his wives and creditors looking for their money. And obcessing about why Brady et al aren't returning his phone calls and text messaging as quickly as they did a month ago.

 

[upstater1]

QUOTE: To further the analogy for you (because in the NFL it's all about risk reward) in order to collect that pot of gold you would have to be willing to risk being bent over several times a day by your fellow inmates and willing to assume none of them was in such a foul mood he decided to use the shiv he's been working on in shop to slit your throat before you finish your short sentance."

And yet people fill other people's raps in return for $$ all the time. I may be wrong but I do think that Deion intends to hold out well into the season. I wish he didn't want to risk what happens when you bend over for the soap, but sometimes all people see is $$$.

 

[lobster]

Nearly 3 months ago Jerry Rice talked about Branch's hold-out on a SIRIUS radio program called "Afternoon blitz". This was Rice's comment - as reported by Mike Reiss on June 13:
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“That’s crazy. You go to minicamp, show your loyalty. Get in there and fight and show them you’ve still got it and you just need them to step up to the plate now," Rice said, according to a transcript prepared by SIRIUS.

"Why are you going to hold out? You are still under contract. It makes no sense. I did that once and I felt stupid. I really felt stupid because you are sitting on the outside looking in. You need to be there. You need that type of interaction with the team. You need to develop that chemistry.

“Get in there. Work your butt off. Prove yourself. Let them know, ‘I still control this area. This is what I do. This is the area where I play the best football.’ And he’s going to get compensated for that. But don’t hold out. I think it’s a big distraction and I think it is going to hurt him down the road.â€
---------------------------------------------------------------------------
Source:
http://www.boston.com/sports/football/patriots/reiss_pieces/2006/06/branch_ripped.html

 

[Sundayjack]

I may be wrong but I do think that Deion intends to hold out well into the season. I wish he didn't want to risk what happens when you bend over for the soap, but sometimes all people see is $$$.

That would assume that he loses his arbitration(s), which the consensus seems to think he will. After losing in arbitration, I'd be willing to bet a donation into Miguel's sister's friend's soup kitchen that he would be back with the team within two weeks. There's logic behind it, but mostly it's a gut feeling.

 

[RAWKY]

After losing in arbitration, I'd be willing to bet a donation into Miguel's sister's friend's soup kitchen that he would be back with the team within two weeks.

I would go in the other direction:

Branch will not report until he has to...

We need to see what Branch's motovation is.

What is driving this for Branch is EMOITION not logic.

Fear and GREED two of the most powerful emoitions in our make up are the motovating force underpinning and sustaining this hold out.

Logic and rational thought can never overcome these basic emoitions so it is highly unlikely Branch will conform too our logical deductions concerning his actions.

If he is still with us he will report the end of week nine, not because he wants to but because he has too. From week ten on he will have more to lose not comming in then at present.

 

[SBPatsFan]

Upstate 1 you seem to be arguing about incentives and disincentives and how they influence behavior. This is very different than a legal right to a behavior.

The collectively bargained disincentives have resulted in 1 person this year holding out (and only 1 person in the history of the CBA holding out 10 games -- Galloway). That means they (NFL/NFLPA) did an excellent job at minimizing the incentives and maximizing the disincentives to this pattern of behavior. But clearly not a perfect job.

But incentives and disincentives are a personal thing; with each person making a decision for themselves what makes sense no matter what the legal rights to the behavior might be. Because the CBA does not have a big enough disincentive to prevent 1 player from holding out this year does not mean the CBA has in any way given permission to holdout. As has been pointed out, since this results in displinary action and fines, it is being legally punished as a violation of the CBA.

That said, I am a bit perplexed why the CBA has been interpreted as allowing a contract year to be fulfilled if a player shows up after week 10. I can't find anything in it that defines a contract year being fulfilled by this course of action and the terms of the standard employment contract suggest a club could toll a player for this. Why players don't get tolled by the team for holding out is a bit of a legal mystery to me since there is no provision that says they can't and one that says they can.
Note: Tolled basically means the contract is extended into the future for time that services were not completed during the original length of the contract.

 

[Sundayjack]

That said, I am a bit perplexed why the CBA has been interpreted as allowing a contract year to be fulfilled if a player shows up after week 10.

Maybe in the standard Player Contract? I'll have a little search.


EDIT: No luck.

 

[upstater1]

Upstate 1 you seem to be arguing about incentives and disincentives and how they influence behavior. This is very different than a legal right to a behavior.

The collectively bargained disincentives have resulted in 1 person this year holding out (and only 1 person in the history of the CBA holding out 10 games -- Galloway). That means they (NFL/NFLPA) did an excellent job at minimizing the incentives and maximizing the disincentives to this pattern of behavior. But clearly not a perfect job.

But incentives and disincentives are a personal thing; with each person making a decision for themselves what makes sense no matter what the legal rights to the behavior might be. Because the CBA does not have a big enough disincentive to prevent 1 player from holding out this year does not mean the CBA has in any way given permission to holdout. As has been pointed out, since this results in displinary action and fines, it is being legally punished as a violation of the CBA.

That said, I am a bit perplexed why the CBA has been interpreted as allowing a contract year to be fulfilled if a player shows up after week 10. I can't find anything in it that defines a contract year being fulfilled by this course of action and the terms of the standard employment contract suggest a club could toll a player for this. Why players don't get tolled by the team for holding out is a bit of a legal mystery to me since there is no provision that says they can't and one that says they can.
Note: Tolled basically means the contract is extended into the future for time that services were not completed during the original length of the contract.

My basic point was in your last paragraph. I don't know why the owners allow it.

But as for the first paragraph, I would make the case that a "perfect storm" of variables came together for Deion Branch which gave him incentive to hold out, and that the combination of these variables are really rare in the NFL.

Branch signed a 5 year contract at a sub 1m salary. He has outperformed his salary. The amount he's making this year looks to be 1/7th of the average of future years. For a player to forego his fifth and final year of the contract would not make sense UNLESS it was a negligible amount by comparison, and that's why not many players have held out into the 10th week. Compare Deion's case to Anquan Boldin's, another 2nd rounder, a guy who--like Deion--has had a year of injury problems. Look at their two salaries side by side. Boldin has made out better than Deion. Boldin is averaging 4.5 million in his 4th and 5th year. Branch is averaging 1m in those years.

Ultimately, I do agree that he shouldn't be holding out, and that it's dumb. All I'm saying is that the clause is not enough of a disincentive for people in Deion's shoes. I tried to think of other highly successful 2nd round WRs with 5 year rookie contracts but none came to mind. That's why I said his situation is rare.

If you look at the Patriots offer, it was within range of Boldin's extension (4 years for 22.5 million) but the key is, Boldin never signed a 5 year rookie contract.

 

[Mike the Brit]

That said, I am a bit perplexed why the CBA has been interpreted as allowing a contract year to be fulfilled if a player shows up after week 10. I can't find anything in it that defines a contract year being fulfilled by this course of action and the terms of the standard employment contract suggest a club could toll a player for this. Why players don't get tolled by the team for holding out is a bit of a legal mystery to me since there is no provision that says they can't and one that says they can.
Note: Tolled basically means the contract is extended into the future for time that services were not completed during the original length of the contract.

I think that this was dealt with in another of the Branch threads (don't ask me which one).

Basically, if I understand it correctly, it's not the case that the CBA allows "a contract year to be fulfilled if a player shows up after week 10".

What the CBA does do is say that unless a player shows up by week 10 that year cannot count towards completing the years necessary to qualify for free agency. But that is irrelevant in Deion's case, since he is under contract for five years and so already has the four years necessary for free agency.

So it's not surprising that SundayJack can't find anything about this in the CBA.

What stops the contract being tolled, I suppose, is that there are no provisions allowing the contract to be extended by one of the parties in the case of non-performance by the other. Though not being a lawyer and not having seen the contract that is just a guess on my part.

 

[SBPatsFan]

Maybe in the standard Player Contract? I'll have a little search.


EDIT: No luck.

Arrellbee, Miguel and I had a quick discussion about this in a very short thread Friday night/Saturday AM. Thread titled "CBA and Contracts Discussion: Why don't teams toll (extend) players holding out"

The section of the standard player contract about tolls is section 16. Extensions.

In the actual CBA under ARTICLE XXXII (OTHER PROVISIONS) it also provides two specific situations that can be tolled.
PUP: ...in the last year of his contract, when the player’s contract will be tolled if he is still physically unable to perform his football services as of the sixth regular season game.

Non Football Injury: a player on N‑F/I who is in the final year of his contract (including an option year) will have his contract tolled.

I haven't located anything that states why a holdout would not be tolled. Or why reporting after game 10 negates a teams right to toll a player.